IRS official: Lerner email could exist

A top IRS official is now uncertain about whether backup tapes of the lost Lois Lerner emails may exist, according to testimony released by Republicans — a potentially significant plot twist in the controversy that has shaken the IRS in recent weeks.

IRS Deputy Associate Chief Counsel Thomas Kane, who oversees the tax-collecting agency’s document production to Congress, told the House Committee on Oversight and Government Reform in private testimony that he’s now unsure whether all the backup tapes with correspondence from the ex-IRS official were recycled.

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“I don’t know if there is a backup tape with information on it or there isn’t,” he told investigators Thursday, according to a partial transcript released by Republicans on the committee Monday.

The IRS official suggested new information has come to light since the IRS revealed in a June 13 letter to Congress that two years of Lerner emails were lost in a 2011 computer crash. Lerner was the head of the tax-exempt division that singled out conservative groups for additional scrutiny and since has become a lightning rod for Republicans probing the matter.

The IRS had said no copies of Lerner’s correspondence were available because the agency at the time backed up emails for only six months on tapes — then recycled the tapes for reuse, essentially erasing the data. IRS Commissioner John Koskinen also testified to the matter before lawmakers.

Kane suggested that might not be the case.

“There is an issue as to whether or not there is a — that all of the backup recovery tapes were destroyed on the six-month retention schedule,” he said.

When asked whether some of those email backup tapes may still exist, he answered: “I don’t know whether they are or they aren’t, but it’s an issue that’s being looked at.”

The IRS has not responded to request for comment, though Koskinen can expect to field questions on the matter during an Oversight hearing slated for Wednesday.

Should the IRS track down a backup of Lerner’s emails, the search for America’s most-wanted hard drive might be put to rest. Republicans and at least one federal judge want to know whether Lerner’s hard drive, which supposedly contains copies of the lost emails, could be tracked using a serial number and then restored.

The IRS has said it’s gone forever. On Friday, top IT experts at the agency declared under oath and penalty of perjury that Lois Lerner’s hard drive had been wiped clean by tech staff and recycled with an unnamed outside contractor that likely “shredded” the device, a process that often includes picking it physically apart and melting it down to reuse the metal.

Another unnamed contractor was able to identify the serial number for the hard drive, but according to the court declaration, IRS never kept track of those numbers.

Such testimony — and these new questions of whether a backup tape may exist — will contribute to D.C. District Court Judge Reggie Walton’s looming decision about whether to appoint an independent computer forensics expert to examine the agency’s computers and make its own assessment about the lost emails, as requested by conservative group True the Vote.

Republicans jumped on Kane’s testimony to push their contention that the IRS is obstructing their probe into added scrutiny given to tea party groups seeking tax breaks, first called out in May 2013 by Lerner and then in a critical report from the Treasury inspector general for tax administration.

“Finding out that IRS Commissioner Koskinen jumped the gun in reporting to Congress that the IRS ‘confirmed’ all back-up tapes had been destroyed makes me even more suspicious of why he waited months to inform Congress about lost Lois Lerner e-mails,” said Oversight Chairman Darrell Issa (R-Calif.) in a statement.

A panel Democratic staffer dismissed the transcripts as “cherry-picked” parts of a broader conversation in which Kane said he’d seen no evidence that Lerner or any other IRS employee intentionally destroyed documents.

To each, essentially he responded: “I have seen nothing to that effect.”

Rep. Elijah Cummings of Maryland, the top Democrat on the panel, blasted Issa for calling Koskinen in to testify for the third time over the past month: “This public harassment of an agency head is not only an abuse of authority, but a dereliction of the committee’s obligation to conduct responsible oversight on a host of other critical issues within our jurisdiction.”

In the session with Kane, when a Democratic investigator at the end of the session asked whether the June 13 letter was accurate to “the best of your knowledge,” he answered: “At that time, that was certainly accurate.”

“That was the state of knowledge and facts as we knew it when the document was set up,” he said.

“Is it still accurate?” a Republican questioner jumped in.

Kane said that there is now “an issue” about the June 13 account and that it’s “being looking at” as part of the ongoing TIGTA probe of the lost emails.

The IRS official is continuing his testimony privately before the Ways and Means Committee this week, after the two panels split up their joint interview sessions.